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Sunday, January 29, 2012

Natural Law and Natural Rights

Natural Law and Natural Rights

By James A. Donaldjamesd@echeque.com
Natural law and natural rights follow from the nature of man
and the world. We have the right to defend ourselves and our
property, because of the kind of animals that we are. True law
derives from this right, not from the arbitrary power of the
omnipotent state.
Natural law has objective, external existence. It follows from
the ESS (evolutionary stable strategy) for the use of force that
is natural for humans and similar animals. The ability to make
moral judgments, the capacity to know good and evil, has
immediate evolutionary benefits: just as the capacity to perceive
three dimensionally tells me when I am standing on the edge of a
cliff, so the capacity to know good and evil tells me if my
companions are liable to cut my throat. It evolved in the same
way, for the same straightforward and uncomplicated reasons, as
our ability to throw rocks accurately.
Natural law is not some far away and long ago golden age myth
imagined by Locke three hundred years ago, but a real and potent
force in today's world, which still today forcibly constrains the
lawless arrogance of government officials, as it did in Dade
county very recently.
The opponents of natural rights often complain that the
advocates of natural rights are not logically consistent, because
we continually shift between inequivalent definitions of natural
law. They gleefully manufacture long lists of “logical
contradictions”. Indeed, the definitions we use are not logically
equivalent, but because of the nature of man and the nature of
the world, they are substantially equivalent in practice. These
complaints by the opponents of natural rights are trivial hair
splitting, and pointless legalistic logic chopping. It is easy to
imagine in principle a world where these definitions were not
equivalent. If humans were intelligent bees, rather than
intelligent apes, these definitions would not be equivalent, and
the concept of natural law would be trivial or meaningless, but
we are what we are and the world is what it is, and these
definitions, the definitions of natural law, are equivalent, not
by some proof of pure reason, but by history, experience,
economics, and observation.
In this paper I have used several different definitions of
natural law, often without indicating which definition I was
using, often without knowing or caring which definition I was
using. Among the definitions that I use are:

The medieval/legal definition: Natural law cannot be
defined in the way that positive law is defined, and to attempt
to do so plays into the hands of the enemies of freedom.
Natural law is best defined by pointing at particular examples,
as a biologist defines a species by pointing at a particular
animal, a type specimen preserved in formalin. (This definition
is the most widely used, and is probably the most useful
definition for lawyers)

The historical state of nature definition: Natural law is
that law which corresponds to a spontaneous order in the
absence of a state and which is enforced, (in the absence of
better methods), by individual unorganized violence, in
particular the law that historically existed (in so far as any
law existed) during the dark ages among the mingled barbarians
that overran the Roman Empire.

The medieval / philosophical definition: Natural law is
that law, which it is proper to uphold by unorganized
individual violence, whether a state is present or absent, and
for which, in the absence of orderly society, it is proper to
punish violators by unorganized individual violence. Locke
gives the example of Cain, in the absence of orderly society,
and the example of a mugger, where the state exists, but is not
present at the crime. Note Locke's important distinction
between the state and society. For example trial by jury
originated in places and times where there was no state power,
or where the state was violently hostile to due process and the
rule of law but was too weak and distant to entirely suppress
it.

The scientific/ sociobiological/ game theoretic/
evolutionary definition: Natural law is, or follows from, an
ESS for the use of force: Conduct which violates natural law is
conduct such that, if a man were to use individual unorganized
violence to prevent such conduct, or, in the absence of orderly
society, use individual unorganized violence to punish such
conduct, then such violence would not indicate that the person
using such violence, (violence in accord with natural law) is a
danger to a reasonable man. This definition is equivalent to
the definition that comes from the game theory of iterated
three or more player non zero sum games, applied to
evolutionary theory. The idea of law, of actions being lawful
or unlawful, has the emotional significance that it does have,
because this ESS for the use of force is part of our
nature.

Utilitarian and relativist philosophers demand that advocates
of natural law produce a definition of natural law that is
independent of the nature of man and the nature of the world.
Since it is the very essence of natural law to reason from the
nature of man and the nature of the world, to deduce “should”
from “is”, we unsurprisingly fail to meet this standard.
The socialists attempted to remold human nature. Their failure
is further evidence that the nature of man is universal and
unchanging. Man is a rational animal, a social animal, a property
owning animal, and a maker of things. He is social in the way
that wolves and penguins are social, not social in the way that
bees are social. The kind of society that is right for bees, a
totalitarian society, is not right for people. In the language of
sociobiology, humans are social, but not eusocial. Natural law
follows from the nature of men, from the kind of animal that we
are. We have the right to life, liberty and property, the right
to defend ourselves against those who would rob, enslave, or kill
us, because of the kind of animal that we are.
Law derives from our right to defend ourselves and our
property, not from the power of the state. If law was merely
whatever the state decreed, then the concepts of the rule of law
and of legitimacy could not have the meaning that they plainly do
have, the idea of actions being lawful and unlawful would not
have the emotional significance that it does have. As Alkibiades
argued, (Xenophon) if the Athenian assembly could decree whatever
law it chose, then such laws were “not law, but merely force”.
The Athenian assembly promptly proceeded to prove him right by
issuing decrees that were clearly unlawful, and with the passage
of time its decrees became more and more lawless.
The Greeks could see that we could recognize actions as
inherently lawful or unlawful, without the need of the state to
tell us. (They had lived through some excellent examples of
lawless states.) But how is it that we know? They came out with
an astonishingly modern answer, a line of reasoning that we would
now call sociobiological.
Aristotle and others argued that each kind of animal has a
mental nature that is appropriate to its physical nature. All
animals know or can discover what they need to do in order to
lead the life that they are physically fitted to live. Thus
humans are naturally capable of knowing how to live together and
do business with each other without killing each other. Humans
are capable of knowing natural law because, in a state of nature,
they need to be capable of knowing it.
This theory was demonstrated rather successfully in the “Wild
West”, which history shows was not nearly as wild as many modern
cities with strict gun control. Beyond the reach of state power,
property rights existed, businesses functioned. (Kopel, 323
-373)
Modern sociobiology uses the phrase “social animal” to mean
what Aristotle meant by “political animal” and what Thomas meant
by “political and social animal”. In modern terminology, ants and
bees are “eusocial” which means “truly social”. Humans, Apes, and
wolves are “social”.
The problem of “how do we know natural law” is no different
from the other problems of perception. The arguments used by
those that seek to prove that we cannot know natural law,
therefore natural law does not exist, are precisely the same as
the arguments that we cannot know anything, therefore nothing
exists, and many notable philosophers, such as Berkeley and
Bertrand Russell, who started out arguing that natural law does
not exist ended up concluding exactly that - that nothing
exists.
Philosophers usually try to reason from reason alone, as is
done in mathematics, though it was long ago proven that this
cannot be done, except in mathematics, and perhaps not even
there.
To draw conclusions about the world one must look both without
and within. Like the chicken and the egg, observation requires
theory and observation leads to theory, theory requires
observation and theory leads to observation. This is the core of
the scientific method, in so far as the scientific method can be
expressed in words.
Natural law derives from the nature of man and the world, just
as physical law derives from the nature of space, time, and
matter.
As a result most people who are not philosophers or lawyers
accept natural law as the ultimate basis of all law and ethics, a
view expressed most forcibly in recent times at the Nuremberg
trials. Philosophers, because they often refuse to look at
external facts, are unable to draw any conclusions, and therefore
usually come to the false conclusion that one cannot reach
objectively true conclusions about matters of morality and law,
mistaking self imposed ignorance for knowledge.
Although many philosophers like to pretend that Newton created
the law of gravity, that Einstein created general relativity,
this is obviously foolish. Universal gravitation was discovered,
not invented. It was discovered in the same way a deer might
suddenly recognize a tiger partially concealed by bushes and the
accidental play of sunlight. The deer would not be able to
explain in a rigorous fashion, starting from the laws of optics
and the probabilities of physical forms, how it rigorously
deduced the existence of the tiger from the two dimensional
projections on its retina, nonetheless the tiger was there,
outside the deer, in the objective external world whether or not
the deer correctly interpreted what it saw. The tiger was a
discovery, not a creation, even though neither we nor the deer
could prove its existence by formal logic. And proof of its
concrete external existence is the fact that if the deer failed
to recognize the tiger, it would soon be eaten.
A determined philosopher could obstinately argue that the
perception of the tiger was merely an interpretation of light and
shadow (which is true), that there is no unique three dimensional
interpretation of a two dimensional image (which is also true),
and that everyone is entitled to their own private and personal
three dimensional interpretation (which is false), and would no
doubt continue to argue this until also eaten. Something very
similar to this happened to a number of philosophers in Cambodia
a few years ago.